Ben Sheffner's notes on copyright, First Amendment, media, and entertainment law, and political campaigns

Thursday, March 5, 2009

Craigslist and Section 230 shortsightedness

By now you have surely heard about the lawsuit filed by Cook County Sheriff Thomas Dart against Craigslist, seeking damages and an injunction regarding the prostitution ads in the site's "Erotic Services" sections.

Professor Eric Goldman -- my personal guru on such matters -- believes the suit "is almost certainly preempted by 47 USC 230," and I trust that he accurately describes the current state of the law. (For the uninitiated, Section 230 of the Communications Decency Act provides virtually airtight immunity for web sites against non-IP claims that are based on material posted by users.) I have emailed Sheriff Dart's attorney asking why he believes Section 230 does not bar this suit, but have not yet received a response.

But put aside the statute and the cases for a minute and ask whether Craigslist is acting responsibly here. Yes, when it wins this suit, as I expect, it will get to crow about its brave stance protecting Internet freedom. But at what cost? Craigslist surely knows that the vast majority of the ads in its "Erotic Services" sections are for clearly illegal services. (Take 2 minutes and look for yourself.) And yet it continues to maintain these sections. My fear is that by doing so, when everyone knows full well the illegal nature of what's advertised there, courts are virtually invited to carve out exceptions to, or narrow the scope of, all the solidly pro-immunity Section 230 cases cited in Professor Goldman's post. I'd argue that's exactly what happened in the Ninth Circuit's Roommates.com en bancopinion, which narrowed Section 230 immunity, quite likely because the judges in the majority were outraged and offended at what they believed was the site's knowing facilitation of users choosing roommates based on race. (Analysis by Professor Goldman here.)

And if Craigslist wins in court, how long will it be before Congress starts getting pressured to amend Section 230 to carve out from immunity cases involving prostitution services, or racist roommate-seekers, or rape wishes? And then does so, after hearing emotional testimony from battered prostitutes, anti-discrimination advocates, and women subject to vicious verbal abuse on law school message boards? And then the next group of victims demands its own exceptions, and then the next, until Section 230 is left in shreds.

Craiglist may think it's standing up for Internet freedom by fighting for its "right" to maintain a section that clearly advertises illegal activity. But by doing so, it risks jeopardizing that freedom for all the responsible actors out there.

True, Ben, but there's a bit of a paradox here.If Craigslist doesn't have an "erotic services" section, the ads will still be there. They'll just be in different Craigslist sections (like, say, the ever-so-mysterious "miscellaneous romance.") There, they will be much more disruptive of the Craigslist experience, and will require still more censorship. So Craigslist can defend the section and end up potentially losing its statutory shield, or take down the section, end up messing up its content for the users, and still end up losing its statutory shield.

If getting rid of the "Erotic Service" sections "will be much more disruptive of the Craigslist experience, and will require still more censorship," well, so be it. Craigslist has a staff and revenue (and it could have a much bigger staff and bigger revenue if it tweaked its business model), and thus it has the capacity to better police its site. And I don't think it's fair to call removing or blocking posts by a private site "censorship." "Censorship" is done by the government; when private entities made editorial decisions, it's called "editing," and has full First Amendment protection itself.

And I think if Craigslist removes the "Erotic Services" sections, the risk of losing the shield -- either through the courts or legislation -- would be reduced. Seems to me that the real risk of losing the Section 230 immunity comes from sites that so blatantly host illegal content, and then basically tell everyone: "Ha, ha. I know full well how much illegal stuff there is on my site. But, because of Section 230, you'll never be able to hold me liable. Sorry!"

Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.

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About This Blog and Me

Welcome to Copyrights & Campaigns. This blog provides news and analysis of copyright, First Amendment, and related issues from a pro-copyright-owner perspective, with emphasis on the interaction of these issues with campaigns and the political process.

Between college and law school, Ben worked as a political reporter in Washington, DC at Roll Call newspaper and the Cook Political Report. Ben also served as a consultant to CBS News during the 1994 election cycle, helping prepare producers and correspondents for the election night broadcast. A detailed bio is available here.

This is Ben's personal blog and does not necessarily represent the views of any past, present, or future clients or employers. Nothing herein constitutes legal advice.

Ben lives in Los Angeles and can be reached at copyrightsandcampaigns [at] gmail.com.

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